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[Principle Of Pay & Recover] Statutory Right Of Third Party To Be Compensated U/S 149 MV Act Even If Vehicle Owner Contests Claim: Karnataka HC

Mustafa Plumber

21 Oct 2022 9:27 AM GMT

    • [Principle Of Pay & Recover] Statutory Right Of Third Party To Be Compensated U/S 149 MV Act Even If Vehicle Owner Contests Claim: Karnataka HC

    The Karnataka High Court has said the 'Principle of Pay and Recover' under section 149 (1) of the Motor Vehicles Act is a statutory right available to third party (claimants) and it cannot depend on whether the owner of offending vehicle contests the claim petition or not, or may or may no prefer an appeal against the Tribunal order.A single judge bench of Justice Hanchate Sanjeevkumar...

    The Karnataka High Court has said the 'Principle of Pay and Recover' under section 149 (1) of the Motor Vehicles Act is a statutory right available to third party (claimants) and it cannot depend on whether the owner of offending vehicle contests the claim petition or not, or may or may no prefer an appeal against the Tribunal order.

    A single judge bench of Justice Hanchate Sanjeevkumar said, "When the claimants/the victims of the motor accident are third parties, then rights of the third party is statutorily protected as per sub-section (1) of Section 149 of the M.V.Act. Therefore, this right of the third party cannot be fluctuated or oscillated according to the conduct of the owner or any other parties."
    It added, "The owner may contest the claim petition or not, or may prefer an appeal or may not prefer appeal, that cannot decide the rights of a third party. The principle of pay and recovery is a beneficial provision to the victims who are third parties."
    Following which it directed the United India Insurance Company Ltd to pay the compensation amount as determined by the Tribunal along with interest at first instance to the claimant and then recover the said amount from the owner of the vehicle in accordance with law.
    Case Details:
    A Banu Praksh, the owner of the offending vehicle had challenged the order of the Tribunal awarding a compensation of Rs.59,500 to the claimant. It dismissed the petition against the insurance company.
    During the appeal, the claimant sought that an order of pay and recovery may be made since the claimant is a third party. It was claimed that even though the insurance company is successful in establishing its defence under Section 149 of the M.V.Act, but as per Section 149(1) of he M.V.Act, an order of pay and recovery can be made.
    Reliance was placed on the judgment of the Apex Court in the cases of Pappuu and others Vs. Vinod Kumar Lamba and another reported in (2018) 3 SCC 208 and also in the case of New India Assurance Company Vs. Yellavva and another reported in 2020 ACJ 2560 (HCK).
    This contention was opposed by the insurance company saying that if the owner has appeared and contested the claim petition and also preferred an appeal before the appellate Court, then the order of pay and recovery cannot be made. Reliance was placed on the judgment of the High Court in MFA.No.8607/2010 dated 09.12.2020 in the case of M.R.Gangadhar V/s Smt. G.Mallika and others.
    Findings:
    Firstly the bench noted that PW.1 (claimant) in the course of cross-examination, admitted that he had paid Rs.20/- to the driver of the Maruti Omni car and had travelled from Kanakapura Village to Beluru. Therefore, it is proved that the said Maruti Omni car is used for hire/commercial purpose by receiving the fare and there is a violation of the conditions of insurance policy.
    It therefore held that the Insurance Company has successfully established the defence as the driver used the offending vehicle for commercial purpose. "In this regard, the appreciation of evidence made by the Tribunal is correct and justified. Therefore, the appellant/owner is primarily liable to pay the compensation and the Insurance Company is liable to be exonerated from indemnifying the owners and for payment of the compensation."
    Further the bench refused to accept the view taken by the coordinate bench in M.R.Gangadhar's case, that in case the owner had contested the claim petition before the Tribunal or files appeal, then the principle of pay and recovery cannot be applied.
    It said, "The motor vehicle Act is a beneficial legislation to the claimants being third party who are sufferers of the motor vehicle accident. They are not concerned with whether the owner has contested or not contested before the Tribunal or in the appeal. But the paramount thing is to be considered is the rights of the third parties are to be protected as per Statute."
    "Just because the owner has contested the claim before the Tribunal or/and preferred appeal before this Court, that cannot affect rights of the third parties who are victims in the road traffic accident. Therefore, the principle that once the right is granted/protected unless there is express provision contrary to that, the rights of third parties are not affected in this regard. This Court cannot accept the contention of the Insurance Company as stated above," it added.
    Accordingly it allowed the appeal in part and modified the order of the tribunal.
    Case Title: A BANU PRAKASH v. THIMMA SETTY & Others
    Case No: M.F.A.No.4945/2014
    Citation: 2022 LiveLaw (Kar) 421
    Date of Order: 01ST DAY OF SEPTEMBER, 2022
    Appearance: VINOD GOWDA., ADVOCATE for appellant; AISHWARGA HEGDE, ADVOCATE. FOR VIGNESHWARA S SHASTRI, Advocate FOR R1; Advocate JWALA KUMAR, FOR R3

    Click Here To Read/Download Judgment


    Tags
    Karnataka High CourtJustice Hanchate Sanjeevkumarprinciple of pay and recoverMotor Vehicles Act 1988Insurance CompanyMotor Vehicle Accidents
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